Download Terms & Conditions

SOUTHERN COMMUNICATIONS LIMITED
TERMS AND CONDITIONS FOR DATA SERVICES
1.
DEFINITIONS AND INTERPRETATION
1.1.
In these terms and conditions (Terms) the following words shall have the following
meanings:
Agreement
the agreement between you and SCL for the supply of the
Services in accordance with the Order and these Terms;
BT
British Telecommunications
companies;
Charges
the charges as notified to the Customer from time to time
and payable by the Customer to SCL for the Services;
Commencement Date
the date of the Agreement;
Confidential
Information
any and all information whether disclosed in written or oral
or machine-readable form or otherwise including without
limitation information relating to SCL’s services,
equipment, operations, know-how, trade secrets and
information of commercial value;
Connection
a single connection of the Customer to the Services;
Customer, you
the individual, company, entity, organisation or business
that purchases the Services from SCL;
Customer’s Website
any website provided and which the Customer uses in
connection with the Website Services;
Domain Name
such domain name as SCL may allocate to the Customer
such allocation being subject to separate terms and
conditions details of which can be obtained upon written
request or by contacting SCL;
DPA
the Data Protection Act 1998;
Early Termination Fee
means:
plc
and
its
associated
(i)
all Charges that are accrued up to and including the
date of termination; plus
(ii)
an average per day value of the Charges accrued by
the Customer in the three months prior to the date of
termination chargeable each day from the date of
termination until the date of expiry of the Minimum
Term, Renewed Minimum Term or Subsequent
Term (as the case may be); plus
(iii)
the total amounts of all Exchange Line Rental
Charges still remaining on the Minimum Term,
Renewed Term or Subsequent Term (as the case
may be) from the date of termination until the date of
expiry of the Minimum Term, Renewed Minimum
Term or Subsequent Term (as the case may be);
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Equipment
Excess
Charges
any communications or other equipment recommended
and approved by the Supplier and/or third party operator
as an essential part of providing the Services. This may
include (without limitation) modem and router cables. It
does not include leads, batteries or other accessories or
equipment the Customer might purchase from any supplier
the Supplier recommends or any alternative supplier;
Construction
any Charge that SCL may apply for resources (including
Equipment) required to provide a Service, or any aspect of
a Service to a Site that exceeds the level of resources
normally required to provide the applicable Service to a
Site;
Exchange Line
any apparatus forming part of the System used by SCL to
connect the Site to a telephone exchange to provide the
Services;
IPR
patents, rights to inventions, copyright and related rights,
trade marks, business names and domain names, rights in
get-up, goodwill and the right to sue for passing off, rights
in designs, database rights, rights to use, and protect the
confidentiality of, confidential information (including knowhow), and all other intellectual property rights, in each
case whether registered or unregistered and including all
applications and rights to apply for and be granted,
renewals or extensions of, and rights to claim priority from,
such rights and all similar or equivalent rights or forms of
protection which subsist or will subsist now or in the future
in any part of the world;
Minimum Term
means twelve (12) months (or such other minimum period
as is set out in the Order) from the date the Order is
deemed completed by SCL and made available to the
Client;
Network
the fixed line telecommunications network operated by a
Network Operator;
Network Operator
a network operator who operates a Network to which a line
is connected in accordance with an agreement between
the Network Operator and SCL;
OFCOM
the Office of Communications or other replacement
authority;
Order
the Customer’s order for the Services;
Our Website
the website located at www.southern-comms.co.uk as may
be amended from time to time;
Overage Charge
means the charges for use of data in excess of any agreed
limit on the Services levied by SCL and as more
particularly detailed in the Service Plan;
Personal Data
personal data, as defined in the DPA;
Renewed Term
the renewed term agreed with SCL in writing in
accordance with Clause 3.3;
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1.2.
Rental
the monthly, quarterly or annual fee (including line rental,
equipment rental, and other rental) payable by the
Customer for the Services, as set out in the Order or as
otherwise notified by SCL;
Service Plan
the monthly, quarterly or annual tariff which the Customer
selects at the time the Customer orders the Services;
Services
the data services including but not limited to broadband,
FTTC, MPF, SMPF, Ethernet First Mile and Ethernet as
set out in the Order and that SCL agrees to supply to the
Customer;
Site
the site(s) at which SCL shall provide the Services;
Subsequent Term
a minimum of twelve (12) months (or such other period set
out in the Order);
SCL, We
Southern Communications Limited (Company Number:
1328040) whose Registered Office is at Glebe Farm,
Down Street, Dummer, Hampshire, RG25 2AD;
SCL’s Equipment
any equipment owned by SCL or its licensors that SCL
uses to provide the Services;
System
the Network that SCL uses to provide the Services;
Transmission Speed
either the rate in Kbps or Mbps that data is transferred
between the Equipment and the Service. The
Transmission Speed available to the Customer will be
affected by the operational and technical characteristics of
the Customer’s telephone line, the Network and the
Customer’s chosen Equipment;
Working Day
09:00 to 17:00 Monday to Friday but excluding public
holidays in the United Kingdom recognised by SCL.
Construction. In these Terms, the following rules apply:
1.2.1.
a person includes a natural person, corporate or unincorporated body (whether or
not having separate legal personality).
1.2.2.
a reference to writing or written includes faxes and e-mails.
1.2.3.
a reference in these Terms to any provision of a statute shall be construed as a
reference to that provision as amended, re-enacted or extended at the relevant time.
1.2.4.
headings in the Agreement shall not affect interpretation.
2.
ORDERS
2.1.
The Order constitutes an offer by the Customer to purchase the Services in accordance with
these Terms.
2.2.
No order placed by the Customer shall be accepted by SCL until the Order is accepted by
SCL in writing or (if earlier) SCL provides the Services to the Customer.
2.3.
Subject to Clause 7.8, once an Order has been accepted by SCL, the Customer may not
cancel an Order.
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2.4.
SCL shall be under no obligation to provide the Services until acceptance of the relevant
Order by SCL. SCL may accept or reject an Order at its sole discretion.
2.5.
The Agreement constitutes the entire agreement between the parties. The Customer
acknowledges that it has not relied on any statement, promise, representation, assurance or
warranty made or given by or on behalf of SCL which is not set out in the Agreement.
2.6.
These Terms apply to the Agreement to the exclusion of any other terms that the Customer
seeks to impose or incorporate, or which are implied by trade, custom, practice or course of
dealing.
3.
MINIMUM TERM, SUBSEQUENT TERM, RENEWED TERM AND EARLY TERMINATION
FEE
3.1.
The Agreement shall commence on the Commencement Date and will continue for the
Minimum Term and any Renewed Term or Subsequent Term.
3.2.
The Customer acknowledges that it has limited rights to terminate the Agreement during the
Minimum Term, Renewed Term or Subsequent Term (as the case may be). These rights are
set out in Clause 9.1.
3.3.
If upon the expiry of the Minimum Term, Renewed Term or Subsequent Term (as the case
may be) the Customer has not;
3.3.1.
agreed a Renewed Term; or
3.3.2.
given notice to SCL in accordance with Clause 9.1
SCL will continue to supply the Services to the Customer for the Subsequent Term
unless the Customer terminates the Agreement as set out in Clause 9.1.
3.4.
If a Renewed Term has been agreed SCL will continue to supply the Services to the
Customer for the Renewed Term unless the Customer terminates the Agreement as set out
in Clause 9.1.
3.5.
If the Customer terminates the Agreement before the expiry of the Minimum Term, Renewed
Term or Subsequent Term, the Customer shall pay the Early Termination Fee.
4.
THE SERVICES
4.1.
In order for SCL to enable the Customer to use the Services the Customer agrees to comply
with the following:
4.2.
4.1.1.
the Customer must have an existing BT or any other non-cable network telephone
line;
4.1.2.
the Customer must have a personal computer of minimum specification;
4.1.3.
the Customer must have compatible cables and extension leads between any
communications equipment and telephone socket; and
4.1.4.
SCL’s provision of the Services is subject to testing to SCL’s satisfaction of the
Customer’s telephone line to ensure that broadband is available in the Customer’s
area and can be activated. If any installation work is needed at the Customer’s Site
before SCL is able to provide the Services, the Customer must arrange this through
an authorised third party or by SCL at the Customer’s own cost.
In certain limited circumstances, in addition to any express restrictions set out in any relevant
handbook for the Services, the Customer accepts that:
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4.2.1.
SCL may not be able to set up the Services for technical reasons beyond SCL’s
control;
4.2.2.
some limitations within the Network may not become apparent through no fault of
SCL until after the Service has been installed and working for some time; and
4.2.3.
there may be geographical limitations that may affect or prevent installation of a
Service.
The Customer accepts that provision of the Services is subject to these potential limitations.
In such circumstances, SCL will notify the Customer as soon as possible and the Service
may have to be withdrawn. Where the Services are withdrawn, SCL will provide the
Customer with a refund of any advance Charges that the Customer has already paid to SCL
for such withdrawn Services.
4.3.
Use of the internet is subject to the Customer’s own risk and subject to any applicable laws.
4.4.
Upon activation of the Services the Customer accepts that the Customer may experience a
temporary loss of the Customer’s existing line.
4.5.
In the event that the Customer wishes to port an existing URL which the Customer wishes to
use in connection with the Services, the Customer agrees and understands there may be
downtime associated with this process and SCL is not responsible for any costs or
consequence of delay arising in connection with any such downtime, provided always that
SCL reserves the right to reject such porting request at its sole discretion.
4.6.
SCL may reject or remove names that SCL believes may infringe someone else’s trade mark
or other intellectual property rights or which SCL considers is offensive, abusive, defamatory
or obscene.
4.7.
The Customer may be allocated a username and password in order to access the Services.
The Customer shall keep such username and password confidential and shall take all
necessary steps to ensure their confidentiality and that they are not disclosed to any
unauthorised third parties. The Customer will:
4.7.1.
inform SCL if the Customer becomes aware of or suspects any unauthorised use of
the Customer’s username and password and agrees to take all necessary steps (or
such steps as may be requested by SCL) to prevent such use; and
4.7.2.
indemnify SCL for any loss, costs, expenses or damages that SCL may suffer as a
result of a breach of this Clause 4.7.
4.8.
To ensure that the Services remain secure, the Customer must not change or attempt to
change a username without SCL’s written permission.
4.9.
If the Customer moves and wishes to access the Services at their new site then:
4.9.1.
the Customer will be required to set up a new account for such new site by
contacting SCL in writing;
4.9.2.
the Customer shall provide SCL with proof of its new address. If the Customer does
not, its existing account will not be terminated and the Customer will be liable for any
Charges that remain due on that account;
4.9.3.
the Customer will pay the administration fee for setting up a new account when the
Customer moves;
4.9.4.
if any SCL Equipment is lost or damaged when the Customer moves address the
Customer will indemnify SCL in respect of, all costs, expenses and liabilities that
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SCL incurs as a result of any loss of or damage to the Equipment, unless directly
caused by SCL.
4.10.
When the Customer has moved address and notified SCL in accordance with Clause 4.9, a
telephone line test will need to be carried out. If it is not possible to connect the Customer,
the Customer may terminate the Agreement provided:
4.10.1. it is no earlier than the date the Customer actually moves;
4.10.2. the Customer gives SCL ten (10) days’ notice in writing; and
4.10.3. the Customer sends to SCL proof of the Customer’s change of address.
Any Charges due in respect of the Customer’s existing account to the date of cancellation will
remain payable.
4.11.
Where SCL connect the Customer at the Customer’s new address, SCL will use reasonable
endeavours to ensure that the Customer’s connection is at the same Transmission Speed as
that at the Customer’s old address prior to the Customer’s move. However, if it is not
possible, SCL will connect the Customer at the Transmission Speed SCL determines is
available and possible.
4.12.
As part of the Services the Customer may set up the Customer’s Website(s). Domain Names
are subject to availability and SCL cannot guarantee the availability of any specific domain
name. The Customer shall ensure that the Customer saves the Customer’s e-mails in the
event that the Customer’s e-mail storage is approaching its limit. Only one free Domain
Name may be allocated to the Customer during the term of the Agreement at no additional
cost; any additional Domain Names will be charged at SCL’s then current rate.
4.13.
Where SCL provides the Customer with one or more e-mail addresses and storage as part of
providing the Services the Customer acknowledge that such e-mail addresses are not the
Customer’s property and that SCL is entitled to alter them in its sole discretion. SCL will only
change the Customer’s e-mail addresses where reasonably necessary after providing the
Customer with reasonable notice of such change.
4.14.
The number of e-mail addresses and the amount of e-mail storage that SCL provides to the
Customer will depend on the Service Plan the Customer subscribes to.
4.15.
The Customer acknowledges that the Customer has no right to sell (or to agree to transfer)
or dispose of in any way, any e-mail addresses or Domain Name provided to the Customer
by SCL.
4.16.
If SCL receives a complaint about the Customer’s Website SCL may suspend it immediately
without notifying the Customer beforehand. SCL may ask the Customer to either agree with
the person making the complaint that the material can remain or can be altered or ask the
Customer to agree to remove it permanently. However, if SCL believes that the material on
the Customer’s Website is sufficiently harmful, unlawful or offensive, is illegal or SCL
receives further complaints about the Customer’s Website after SCL has already issued the
Customer with a warning, SCL may end the Agreement without further notice to the
Customer. In such circumstances SCL will be under no obligation to provide the Customer
with any refund.
4.17.
If SCL supplies or provides any third party software to the Customer pursuant to the
Agreement, then such software shall be supplied or provided subject to the standard terms
and conditions of the proprietor of such software at the time of supply or provision, provided
such terms and such conditions are not inconsistent with the Customer's rights under this
Agreement. The Customer undertakes to:
4.17.1. use such software strictly in accordance with such terms and conditions, which have
been provided to it by SCL;
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4.17.2. enter into any licence or agreement reasonably required by the owner of any
intellectual property rights in any software supplied to the Customer for the purpose
of accessing the Services.
4.18.
The Customer acknowledges that as part of the Customer’s Order to receive and enjoy the
full benefit of the Services some minor modifications may need to be made to the Customer’s
computer. It is the Customer’s responsibility to ensure that such modifications do not
invalidate the terms of any warranty that the Customer may have concerning the Customer’s
computer. SCL will not be liable for any claim that the Customer’s warranty has been
invalidated (if applicable) as a result of work carried out by the Customer, SCL, or SCL’s
agents in order to make the Customer’s computer operate with the Services.
4.19.
It is the Customer’s responsibility to ensure the compatibility of the Services with the
Customer’s personal computer; any hardware, software or any other equipment or services.
4.20.
The Customer recognises that the Services may from time to time be adversely affected by
failure of a server or other external causes and may fail or require maintenance without
notice. The Customer further acknowledges that SCL will have no liability for failure of the
Services unless and to the extent caused by SCL’s negligence or fraudulent
misrepresentation.
ROUTER
4.21.
The Customer acknowledges that SCL is not responsible for any broadband router that has
not been provided by SCL or the configuration of that device and that any fault diagnosis on
the broadband circuit will only be carried out with the test router supplied by SCL for that
purpose. The Customer also acknowledges that it is the Customer’s responsibility to provide
full assistance during that testing and that failure to provide such assistance that results in an
inability for SCL to correctly troubleshoot the fault will be the sole responsibility of the
Customer and SCL will not be liable for any claim resulting due to loss of, or a poor speed
Services.
5.
SCL’S GENERAL OBLIGATIONS
5.1.
SCL shall supply the Services to the Customer from the Commencement Date for the term of
the Agreement in accordance with these Terms.
5.2.
SCL shall have the right to make any changes to the Services which are necessary to comply
with any applicable law or safety requirement, or which do not materially affect the nature or
quality of the Services, and SCL shall notify the Customer in any such event.
5.3.
The provision of the Services is subject to all relevant licences, infrastructure (or interconnect
arrangements) and consents being in place. The Customer shall obtain any consent or
facility that is necessary or desirable for SCL to provide the Services at the Site.
5.4.
SCL may:
5.5.
5.4.1.
change or withdraw some, or part, of the Services from time to time. This may be
because of changing technologies, obsolescence, new or different product features,
changing content providers or the need to remove, replace or modify content; and
5.4.2.
determine how the Services are presented and delivered or are otherwise made
available to the Customer. SCL can change the way they are presented, delivered or
otherwise made available to the Customer at any time.
Pursuant to Clause 5.4 where a change to, or withdrawal of, a Service option arises:
5.5.1.
solely due to SCL’s business requirements SCL will give at least three months’
written notice to the Customer; or
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5.5.2.
5.6.
as a result of changing arrangements with a third party or for legal or regulatory
reasons, SCL will give as much notice to the Customer as is reasonably practicable
in the circumstances.
Upon expiry of any such notice period set out in Clause 5.5:
5.6.1.
SCL will not accept any new Orders for the relevant service option; and
5.6.2.
At SCL’s discretion:
5.6.2.1.
5.6.2.2.
any Orders that have been accepted by SCL but where a Connection is
not available for use will either be:
5.6.2.1.1.
ceased by SCL; or
5.6.2.1.2.
allowed to progress through to completion; or
the Customer will be offered a new service option for acceptance, save
that if, in the reasonable opinion of the Customer, it deems the service
levels of the new service to be materially less than the service to be
withdrawn, and the Customer may terminate the Order without incurring
any form of Early Termination Charges.
5.7.
SCL may relocate a Connection within the Network for reasons including security,
improvements to infrastructure, capacity management, cost reduction or mitigation of a
known fault, provided any such relocation will not have an adverse effect on the Services. If
the Customer concludes (in consultation with SCL) that the relocation will have an adverse
effect on the relevant Services it may terminate the Connection without incurring Early
Termination Charges.
5.8.
The Services will be provided within SCL’s Network Operator’s Network area but it’s always
possible that the quality or coverage may be affected at times.
5.9.
The Customer acknowledges that:
5.10.
5.9.1.
the provision of certain Services shall be subject to the completion of a satisfactory
Site survey. In a limited number of cases, SCL or its representative shall require
access to the Site to complete the Site survey;
5.9.2.
upon completion of the Site survey, SCL shall notify the Customer of the estimated
Connection date for the relevant Service; and
5.9.3.
SCL shall inform the Customer by email when the Service has successfully been
installed.
SCL shall exercise the reasonable care and skill of a competent telecommunications
operator. The Customer acknowledges that:
5.10.1. SCL cannot guarantee that the Services will be available without interruption or will
be free from error;
5.10.2. it is technically impossible to provide an incident free service and SCL does not
undertake to do so;
5.10.3. the Services have not been developed to meet the Customer’s individual
requirements and that it is therefore the Customer’s responsibility to ensure that the
facilities and functions of the Services meets their requirements;
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5.10.4. the operability, quality and availability of the Services may sometimes be affected by
factors outside SCL’s, BT’s or the Network Operator’s control such as physical
obstructions, atmospheric conditions and other causes of radio interference, faults in
other telecommunication networks or other events;
5.10.5. the existence of any minor errors in the Services shall not constitute a breach of the
Agreement; and
5.10.6. SCL, BT or other Network Operator may at any time and without liability modify,
expand, improve, maintain or repair the Services and this may require suspension of
the operation or provision of the Services
and SCL shall have no liability to the Customer in connection with any such adverse effect on
the quality and availability of the Services.
5.11.
SCL shall use reasonable endeavours to meet any agreed dates but shall not be liable for
failure to meet them or for any delay caused by circumstances beyond SCL’s reasonable
control including but not limited to delays in obtaining consent to carry out work at the Site or
delay in the Customer approving any Excess Construction Charges. Time shall not be of the
essence of the Agreement.
5.12.
SCL shall not and shall not be under any obligation (express or implied) to monitor the
Customer’s usage and/or patterns of usage.
5.13.
The Customer shall report any fault in the Services to SCL’s Customer Services Department
as soon as reasonably practicable, where it will be dealt with in accordance with the agreed
fault repair service or any applicable service level agreement. SCL shall not be obliged to fix
any fault if:
5.13.1. the defect arises because the Customer failed to follow any user manual or other
documentation available from the manufacturer or SCL’s oral or written instructions
as to the use or maintenance of the Services or (if there are none) good trade
practice;
5.13.2. the defect is caused by improper use of the Services or use outside its normal
application;
If SCL agrees to fix a fault:
5.13.3. caused by the circumstances set out in this Clause 5.13; or
5.13.4. caused by the Customer; or
5.13.5. that otherwise falls outside the responsibility of SCL; or
5.13.6. where no fault is subsequently found
SCL may charge the Customer for such work at its applicable man-hour rate.
5.14.
SCL shall not be liable for any fault whether under Clause 5.13 or otherwise unless the
Customer gives written notice of the defect to SCL within seven (7) days of the time when the
Customer discovers or ought to have discovered the defect.
Service Levels
5.15.
In fulfilling its obligations under these Terms SCL will comply with its obligations as set out in
any applicable service level agreement for the Services.
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5.16.
The technical specification of each Service and manner in which SCL discharges its
obligations under these Terms is at the sole discretion of SCL.
5.17.
If the Customer instructs SCL to dispatch a SCL representative to any site to investigate a
possible fault, SCL reserves the right to invoice the Customer for the visit should the fault be
found to be with the Customer's network.
5.18.
Where at the Customer's request SCL spends time investigating any fault which is repeatedly
or continuously reported by the Customer and SCL concludes each time that there has been
no service failure, SCL reserves the right to charge the Customer for all reasonable costs
and expenses incurred in investigating the alleged Service Failure and the Customer agrees
to pay such charges in accordance with Clause 7.
5.19.
The Customer shall be responsible for claiming any service credit in accordance with the
applicable service level agreement. Where a valid claim is made and the Customer becomes
entitled to a service credit, SCL will issue a credit note to the Customer for an amount equal
to the applicable service credit.
5.20.
In order to receive an available service credit, the Customer must give notice to SCL, within
15 days of the end of the calendar month for which the service credit is claimed. If the
Customer fails to claim the service credit to which it is entitled, the Customer shall be
deemed to have waived its right to claim the service credit.
5.21.
Service credits will not be available to the Customer to the extent that SCL fails to meet any
service levels as a result of:
5.21.1. an act, fault or omission by the Customer, or any of its representatives, employees,
agents or sub-contractors;
5.21.2. any equipment not supplied by SCL or a Network Operator;
5.21.3. any circumstances beyond SCL’s control;
5.21.4. any failure by the Customer to act on SCL's reasonable instructions;
5.21.5. any suspension of the Services under Clause 8; or
5.21.6. any other event specified in the applicable service level agreement.
5.22.
The duration of any Service fault, for the purposes of calculating service credits, will be
measured from the time the fault report is logged by the SCL Customer Services Department
to the time SCL can demonstrate that the Service has been restored to the standards set out
in the applicable service level agreement.
5.23.
Where the Customer suffers a fault or interruption in respect of any Service, SCL
acknowledges that, in relation to such Service, the Customer is entitled to arrange for traffic
to be redirected to another operator and the Customer agrees that, subject to compliance
with any obligations in each applicable service level agreement, it is not SCL's responsibility
to arrange for the provision of alternative services in such circumstances.
6.
THE CUSTOMER’S OBLIGATIONS
6.1.
The Customer may only use the Services:
6.1.1.
as laid out in the Agreement; and
6.1.2.
for their own use. The Customer may not resell or commercially exploit any of the
Services without the prior written consent of the Company.
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6.2.
The Customer shall comply with all security standards applicable to the Services and as
notified to the Customer by SCL from time to time.
6.3.
The Customer shall not utilise and shall ensure that no other person uses the Services:
6.3.1.
for storing, reproducing, transmitting, communicating or receiving any material in
breach of any law, regulation, code of practice or in breach of SCL’s acceptable use
policy; or
6.3.2.
fraudulently or for any criminal or illegal purpose or in a manner that is contrary to
any regulatory or legal requirement; or
6.3.3.
to make defamatory, offensive, obscene, indecent, menacing, abusive, nuisance or
hoax calls; or
6.3.4.
to cause annoyance, inconvenience or needless anxiety to any person; or
6.3.5.
contrary to instructions that SCL may give to the Customer from time to time; or
6.3.6.
to copy, store, modify, publish or distribute services or content (including ringtones),
except where SCL gives the Customer prior permission in writing; or
6.3.7.
to download, send or upload content of an excessive size, quantity or frequency.
SCL will contact the Customer if the Customers use is excessive; or
6.3.8.
in violation of any applicable local, national, or international law or regulation;
6.3.9.
in a manner which infringes the rights of any person, including intellectual property
rights and rights of confidentiality.
6.4.
To prevent spam from entering and affecting the operation of SCL’s systems and the
Services, SCL may take any reasonable measures or actions necessary to block access to
or delivery of any e-mail which appears to be of an unsolicited nature and/or part of a bulk email transmission. SCL may also use within its systems virus screening technology that may
result in the deletion or alteration of e-mail and or e-mail attachments. However, SCL does
not warrant that such technology will be effective against all virus attacks or unsolicited emails.
6.5.
The Customer acknowledges that the Services are provided to other users and SCL owes a
duty to them as a whole to preserve Network integrity and to avoid Network degradation. If, in
SCL’s reasonable opinion, SCL believes that the Customer’s use of the Services has or may
adversely affect such network integrity or may cause network degradation SCL may change
the Customer’s Transmission Speed or manage the Customer’s use of our Services as SCL
see fit in the circumstances. This includes, but is not limited to, any circumstances where the
Customer is running an application or program that places excessive bandwidth demands on
the Services for continued periods. SCL may also impose a limit on the Customer’s usage
capacity at any time at our sole discretion if the Customer’s usage is affecting or may affect
other users’ enjoyment of the Services.
6.6.
During the term of the Agreement the Customer may request a change to the Customer’s
Service Plan at any time provided that it is only once in every thirty (30) days. Changes to the
Customer’s Service Plan are subject to availability and payment of any applicable Charges.
SCL will use reasonable endeavours to complete the change as soon as possible but cannot
guarantee how quickly this will be done and time shall not be of the essence. The Customer
will be responsible for all Charges on the existing Service Plan until the change is completed.
6.7.
SCL may publish an acceptable use policy which provides more detail about the rules for use
of certain Services in order to ensure that use of the Services is not excessive, or to combat
fraud and where Services SCL may introduce require certain rules to ensure they can be
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enjoyed by the Customer. If SCL publishes a policy, SCL will let the Customer know – such
a policy may be amended from time to time.
6.8.
The Customer must only use Equipment authorised by SCL for connection to the Network
and also comply with all relevant legislation relating to their use.
6.9.
The Customer will not use the Services to access any computer, network, or data without
authorisation or in a manner which exceeds authorisation including, any attempt to:
6.10.
6.9.1.
retrieve, alter, or destroy data;
6.9.2.
probe, scan or test the vulnerability of a system or network; or
6.9.3.
breach, or defeat system or network security, authentication, authorisation,
confidentiality, intrusion detection, monitoring, or other security measures.
The Customer shall co-operate with and comply with at all times:
6.10.1. any operating procedures and any other technical requirements of SCL as may be
notified to the Customer from time to time;
6.10.2. SCL’s reasonable instructions to ensure the proper use and security of the Services.
6.11.
The Customer will provide SCL with all up to date and accurate information that SCL needs
to provide the Services and allow SCL to use that information for credit checking and debt
collection (including disclosure to and Data use by third parties acting for SCL) and any other
uses and disclosures permitted under the DPA and will allow SCL to disclose such
information to the extent that SCL is required to do so by PhonepayPlus, OFCOM, the law or
any relevant authority.
6.12.
The Customer shall:
6.12.1. keep all of SCL’s Equipment at the Site safe and shall pay for the replacement and/or
repair of any of SCL’s Equipment which is lost, damaged (otherwise than by fair wear
and tear) or destroyed by an act or omission of the Customer, its employees, agents
or subcontractors;
6.12.2. not alter or move any of SCL’s Equipment, nor do anything that is likely to damage or
adversely affect its performance, nor remove or deface any words or signs on it, nor
permit anyone else to do so;
6.12.3. not modify, move, relocate or in any way interfere with such SCL Equipment;
6.12.4. comply at all times with the specified operating procedures and interconnection
requirements of SCL as may be notified to it from time to time;
6.12.5. indemnify SCL in respect of, all costs, expenses and liabilities that SCL incurs as a
result of any loss of or damage to the Equipment, unless directly caused by SCL;
6.12.6. not cause the SCL’s Equipment to be repaired, serviced or otherwise attended to
except by an authorised representative of SCL;
6.12.7. insure and keep insured all SCL’s Equipment;
6.12.8. use the SCL Equipment only for the purpose of receiving the Services and in
accordance with such reasonable instructions as may be given by SCL from time to
time; and
6.12.9. permit SCL to inspect or test the SCL Equipment at all reasonable times.
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6.13.
It is the Customer’s responsibility to make sure that SCL’s Equipment is only used to access
Services as permitted.
6.14.
The Customer shall not sell, let, mortgage, charge, pledge, dispose of or do anything that
would prejudice SCL’s Equipment in any way. The Customer will allow SCL to inspect, test,
modify, change, add to, replace or remove any SCL’s Equipment, either remotely or via a
designated maintainer. At the end of the term of the Agreement, the Customer will allow SCL
access at all reasonable times to collect any of SCL’s Equipment in the Customer’s
possession.
6.15.
The Customer shall at its own cost arrange for the required Site specific conditions, as
notified by SCL. This will include, without limitation, mains electricity supply, connection
points and computer terminals. The Customer shall prepare the Sites in accordance with
SCL’s reasonable instructions and reinstate them at the Customer’s expense after SCL has
completed any work necessary for SCL to be able to provide the Services.
6.16.
The Customer shall ensure that any Equipment (excluding SCL’s Equipment) that it uses in
connection with the Services meets any legal or regulatory requirements and is approved for
connection to the System. If not, the Customer must immediately disconnect it or allow SCL
to do so at the Customer’s expense.
6.17.
The Customer shall indemnify SCL against all costs, damages, expenses and losses and
reasonable professional costs and expenses suffered or incurred by SCL arising out of or in
connection with:
6.17.1. the use or misuse of the Services by the Customer;
6.17.2. claims of third parties seeking damages for any loss or misuse of data by the
Customer;
6.17.3. any breach by the Customer of the use provisions set out in this Agreement.
7.
CHARGES AND PAYMENT
7.1.
The Customer shall pay the Charges.
7.2.
SCL will send to the Customer within thirty (30) days of the Start Date, an invoice which will
include a pro-rated charge for the remainder of the Minimum Term in which the Customer’s
account is activated and the charge for the any Renewed Term or Subsequent Term and, if
applicable any costs for Equipment the Customer has purchased. Thereafter SCL will
prepare and send to the Customer each month, quarter or year (as the case may be) an
invoice detailing the charge for the following month, quarter or year.
7.3.
The Rental shall continue to be payable during any period of suspension or restriction
requested by the Customer in addition to any Charges for such suspension or restriction.
7.4.
Where any Customer exceeds their allocated monthly limit then Overage Charges will apply
to each applicable Connection.
7.5.
If the Customer disputes any invoice (including the calculation of any amounts payable) they
must notify SCL within 6 months of the date of the invoice. The Customer shall not be entitled
to any credit or refund relating to disputes raised after expiry of this period
7.6.
The Customer shall pay the full amount invoiced by SCL by direct debit within fourteen (14)
days of the date of invoice. If the Customer’s credit rating decreases at any time, SCL shall
be entitled to revise the credit terms to require payment upon invoice or in less than fourteen
(14) days.
7.7.
The Customer shall pay the Charges in pounds sterling without set-off or deduction.
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7.8.
The Charges are exclusive of Value Added Tax, which shall be payable by the Customer in
addition to the Charges at the rate applicable from time to time.
7.9.
If any Excess Construction Charges are identified such Charges must be accepted by the
Customer before work on the Order can continue. Where such Excess Construction
Charges are identified, if no acceptance of such Excess Construction Charges is provided by
the Customer within 30 days of notification by SCL of such Excess Construction Charges (or
such longer period as the Parties may expressly agree), the Charges will be considered
rejected and the Order deemed cancelled.
7.10.
Time for payment of the Charges shall be of the essence of the Agreement.
7.11.
If the Customer fails to make payment in full by the due date, in addition to SCL’s right to
suspend the Services as set out in Clause 8.1, SCL may charge interest at the rate of 4% per
annum above the base rate of the National Westminster Bank plc on any amounts
outstanding from the due date for payment until payment is made in full.
7.12.
SCL will give the customer as much prior notice as practicable of any alteration to the
charges and in any event not less than 1 month’s prior notice of such change. This notice
may be included in an invoice to the Customer. If SCL increases the Charges by more than
the Retail Price Index during the Minimum Term, the Customer may terminate the Agreement
on written notice to SCL within ten (10) days of receipt of the notice of increase, without the
obligation to pay the Early Termination Fee.
7.13.
SCL may also change the level of its Charges during or after the Minimum Term as a
consequence of:
7.13.1. any OFCOM direction, determination, order or similar decision; or
7.13.2. any notice issued by BT or other Network Operator correcting an error in the amount
or application of a charge or payment under it’s interconnect agreement with SCL.
In both cases, SCL shall only be entitled to change the level of its Charges where the
foregoing impacts upon the basis upon which the Charges were calculated.
7.14.
If the Customer disputes any invoice (including the calculation of any amounts payable) they
must notify SCL within 3 months of the date of the invoice. The Customer shall not be entitled
to any credit or refund relating to disputes raised after expiry of this period.
7.15.
The Customer shall pay any charges raised to cover time spent dealing with matters (such as
repairing faults) where this work is not covered under any of the terms of the Agreement.
Such Charges could involve the provision or rearrangement of equipment, wiring, network or
services.
7.16.
If SCL becomes liable to pay any additional fees, costs or charges to the Government, a
regulatory authority or self-regulatory authority and such fees, costs or charges are directly
attributable to the provision of Services to the Customer under the Agreement, SCL shall be
entitled to pass through such fees, costs and charges to the Customer with immediate effect.
7.17.
Where SCL agrees to do work outside a Working Day at the request of the Customer, SCL
may charge the Customer in accordance with SCL’s applicable man-hour rate.
8.
SUSPENSION AND VARIATION OF THE SERVICES
8.1.
SCL reserves the right (at its option) to terminate the Agreement or suspend or vary the
Services without notice:
8.1.1.
if SCL is obliged or requested to comply with an order or instruction of, or a
recommendation or request to take such action received from the Government,
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OFCOM, Radio Communications Agency, PhonepayPlus, an emergency services
organisation or a competent administrative authority;
8.1.2.
if SCL reasonably believe the Customer has provided false or misleading details
about the Customer;
8.1.3.
if SCL needs to modify, expand, improve, maintain or repair the Services or vary
Network capacity;
8.1.4.
if SCL needs to vary the technical specification of the Services in order to comply
with any relevant law or regulation or direction from a competent authority;
8.1.5.
if SCL advises the Customer that the Customers excessive use of Services is
causing problems for other users, and the Customer is continuing to use the Services
excessively;
8.1.6.
if SCL receives a serious complaint against the Customer which SCL believes to be
genuine;
8.1.7.
if SCL reasonably believes that the Customer has used the Services for illegal or
improper purposes in contravention of SCL’s acceptable use policy or requirements;
8.1.8.
if SCL reasonably suspects or believes that the Customer is in breach of Clause 6;
8.1.9.
if the Customer fails to comply with its obligations under the Agreement including the
obligation to pay the Charges; or
8.1.10. if the Customer’s credit rating decreases at any time, and the Customer fails to
supply reasonable security in response to a request from SCL.
8.2.
SCL shall have the right, without notice, to suspend or deny access to the Network:
8.2.1.
by any equipment which will or may adversely affect the operation of the Network or
provision of the Services whether or not such equipment has been approved or
tested by SCL; or
8.2.2.
if SCL suspects fraudulent, criminal or illegal activities are being carried out, or are
likely to be carried out, via that equipment,
8.2.3.
whenever it in its absolute discretion it considers necessary or desirable in order to
monitor or reduce the incidence of fraud.
8.3.
SCL will use its reasonable endeavours to notify the Customer promptly of the details of any
incident where SCL has relied on its rights under Clause 8.2.3. The Customer will be
responsible for all Charges incurred in respect of the Services even if such Charges were
incurred through, or as a result of, fraudulent or unauthorised use of the Services (other than
by SCL or its representatives). SCL is not obliged to detect unauthorised or fraudulent use of
the Services.
8.4.
The Customer shall reimburse SCL for all reasonable costs and expenses incurred as a
result of the suspension and any recommencement or variation of the Services where
suspension or variation is implemented as a result of any act or omission of the Customer.
9.
TERMINATION
9.1.
The Customer may:
9.1.1.
terminate the Agreement (without incurring any Early Termination Fee) by giving a
minimum of three (3) months prior written notice to SCL such notice to expire on the
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expiry date of the Minimum Term, the Renewed Term or Subsequent Term (as the
case may be); or
9.1.2.
9.2.
9.3.
terminate the Agreement before the Minimum Term, the Renewed Term or
Subsequent Term (as the case may be) has expired but will have to pay the Early
Termination Fee to SCL.
Either Party may immediately terminate the Agreement by written notice if the other Party:
9.2.1.
commits a material breach of any of the terms of the Agreement and (if such a
breach is remediable) fails to remedy that breach within 14 days of receipt of notice
in writing to do so;
9.2.2.
commits a material breach that is not capable of being remedied; or
9.2.3.
commits an act of bankruptcy or goes into or is put into liquidation (other than solely
for the purposes of a reconstruction or amalgamation) or if a receiver or administrator
is appointed over all or part of the other Party’s assets or the other Party suffers
seizure of any of its property for non-payment of monies owing.
SCL may, without prejudice to any of its other rights under the Agreement, terminate the
Agreement with immediate effect by notice in writing without liability to the Customer in the
event that:
9.3.1.
SCL is not, for whatever reason, permitted or authorised to provide the Services;
9.3.2.
SCL reasonably considers that the breach, act, omission or default of the Customer
may result in SCL's failure to comply with any applicable legislation or may place
SCL in breach of its agreement with the Network Operator;
9.3.3.
use by the Customer of the Network or the Services is, or is likely to cause damage
to, interrupt or otherwise prevent SCL from supplying the Services to other customers
or complying with obligations owed to other customers;
9.3.4.
the Customer fails to pay the Charges when due;
9.3.5.
such action is required in order to comply with any legislation;
9.3.6.
SCL has reasonable grounds to suspect that the Customer is involved in fraudulent
or other unlawful activity.
9.4.
If the Agreement is signed before SCL has completed its credit check of the Customer, SCL
shall be permitted to terminate the Agreement immediately by written notice if the Customer
fails to pass SCL’s credit policy.
9.5.
The rights to terminate the Agreement given by this Clause 9 shall be without prejudice to
any other right or remedy of either Party in respect of the breach concerned (if any) or any
other breach.
10.
LIMITATIONS AND EXCLUSIONS OF LIABILITY
10.1.
This Clause 10 sets out SCL’s entire liability (including any liability for acts or omissions of
SCL’s employees, agents or subcontractors) in respect of any breach of the Agreement and
any representation, statement or tortuous act or omission arising out of or in connection with
the Agreement.
10.2.
Except as set out in these Terms, SCL provides no warranties, conditions or guarantees as
to the description or quality of the Services, and all warranties, conditions or guarantees
16
implied by or expressly incorporated as a result of custom and practice, statute, common law
or otherwise are hereby expressly excluded so far as permitted by law.
10.3.
Subject to Clause 10.5, SCL’s aggregate liability in contract, tort (including negligence or
breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection
with the performance or contemplated performance of the Agreement shall not exceed
£1,000,000 (one million pounds sterling).
10.4.
Subject to Clause 10.5, SCL shall not be liable to the Customer whether in tort (including for
negligence or breach of statutory duty), contract, misrepresentation or otherwise the
Agreement, for:
10.4.1.
loss of profits; or
10.4.2.
loss of revenue;
10.4.3.
loss of income or business;
10.4.4.
depletion or loss of goodwill, reputation or similar losses;
10.4.5.
loss of anticipated savings;
10.4.6.
loss of use;
10.4.7.
loss of contract;
10.4.8. any indirect or consequential or special loss or damage or pure economic loss, costs,
damages, charges or expenses whatsoever and howsoever caused.
10.5.
Nothing in these Terms shall exclude or limit the liability of SCL for:
10.5.1. death or personal injury resulting from the Company’s negligence; or
10.5.2. for fraud or fraudulent misrepresentation; or
10.5.3. for any matter which it would be illegal for SCL to exclude or attempt to exclude its
liability.
10.6.
The provisions of this Clause 10 shall survive termination or expiry of the Agreement.
11.
CONFIDENTIALITY AND DATA PROTECTION
11.1.
The Customer agrees to keep all Confidential Information confidential, to disclose it only to its
employees that need to know it and to use it exclusively for the purposes contemplated by
the Agreement. This Clause shall not apply to information that the Customer can prove:
11.1.1. is in the public domain otherwise than by the Customer’s breach;
11.1.2. it already had in its possession prior to obtaining the information directly or indirectly
from SCL; or
11.1.3. a third party subsequently disclosed to the Customer free of restrictions on disclosure
and use.
This Clause shall survive for three (3) years from when the Customer acquired that
Confidential Information from SCL.
11.2.
SCL and the Customer shall each comply with there respective obligations under the DPA
and maintain all relevant registrations and notifications.
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11.3.
The Customer agrees that SCL may provide its Personal Data to SCL’s Network Operator to
enable it to process the Customer’s information and users personal data, which SCL collects
or which the Customer submits to SCL during any sales or registration process, for a number
of purposes, including to open and manage an account for Services, to deliver products and
services ordered by the Customer, for security and emergency service support, for credit
checking and fraud prevention, and for product analysis. The Customer further agrees that
SCL may contact BT or previous communications service providers of the Customer to obtain
information required to perform the Services.
12.
IPR AND OWNERSHIP
12.1.
All IPR relating to the subject matter of the Agreement shall vest in SCL or its licensors, as
appropriate and ownership of SCL’s Equipment and the System (including any works
performed by SCL to connect the Site to the System) shall remain with SCL or its licensors,
as appropriate. The Customer:
12.1.1. acknowledges that it shall have no licence, right, title or interest in or to any IPR of
SCL or its licensors or SCL’s Equipment or the System;
12.1.2. may not include SCL’s name or any other trade mark, brand name, logo or get-up
associated with SCL without SCL’s prior written consent.
12.2.
Risk in any rental equipment shall pass to the Customer on delivery. Ownership of rental
equipment remains at all times with SCL or other third party owner. The Customer has no
right, title or interest in the rental equipment except that it is provided to the Customer for the
duration of and on the terms of the Agreement.
12.3.
This Clause shall survive termination or expiry of the Agreement.
13.
CIRCUMSTANCES BEYOND REASONABLE CONTROL
13.1.
Neither Party shall be liable for any delay in performing its obligations under the Agreement
caused by circumstances beyond its reasonable control. These are circumstances such as,
but not limited to, Acts of God, insurrection or civil disorder or military operations, national or
local emergency, acts or omissions of government or other competent authority or regulatory
authority, fire, flood, lightning or other weather of exceptional severity, subsidence, explosion
or industrial disputes. This Clause does not apply to the Customer’s obligation to pay the
Charges.
13.2.
If either Party is affected by circumstances beyond its reasonable control, it shall notify the
other Party and shall use reasonable endeavours to overcome the effects. If those effects
continue for more than three (3) months, the Parties shall enter into a discussion to agree, in
good faith, the best way forward.
14.
NOTICES
14.1.
Notices must be in writing. The address for service on SCL (subject to any change notified
by SCL) is: Southern Communications Ltd, Glebe Farm, Down Street, Dummer, Hants, RG25
2AD. The address for service on the Customer is as set out in the most recent invoice.
14.2.
Notices may be delivered by hand, sent by first-class mail, fax or e-mail. Correctly addressed
notices if delivered by hand, shall be deemed to have been delivered at the time of delivery, if
sent by first-class mail shall be deemed to have been delivered 72 hours after posting,
correctly directed faxes shall be deemed to have been received instantaneously on
transmission and in proving the service of any notice by e-mail, it will be sufficient to prove
that such e-mail was sent to the specified e-mail address of the addressee.
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15.
ENTIRE AGREEMENT
15.1.
It is acknowledged and agreed that the Agreement (including the documents and instruments
referred to herein) (the Documents) shall supersede all prior representations arrangements
understandings and agreements between the parties relating to the subject matter hereof
and shall constitute the entire complete and exclusive agreement and understanding
between the parties hereto;
15.2.
The parties irrevocably and unconditionally waive any right they may have to claim damages
for any misrepresentation arrangement understanding or agreement not contained in the
Documents or for any breach of any representation not contained in the Documents (unless
such misrepresentation or representation was made fraudulently);
15.3.
It is further acknowledged and agreed that no representations arrangements understandings
or agreements (whether written or oral) made by or on behalf of any of the other parties have
been relied upon other than those expressly set out or referred to in the Documents.
16.
GENERAL
16.1.
Assignment and other dealings.
16.1.1. SCL may at any time assign, transfer, mortgage, charge, subcontract or deal in any
other manner with all or any of its rights under the Agreement and may subcontract
or delegate in any manner any or all of its obligations under the Agreement to any
Authorised Party, third party or agent.
16.1.2. The Customer shall not, without the prior written consent of SCL, assign, transfer,
mortgage, charge, subcontract, declare a trust over or deal in any other manner with
any or all of its rights or obligations under the Agreement.
16.2.
Severance. Each of the clauses of these Terms operates separately. If any court or relevant
authority decides that any of them are unlawful, the remaining clauses will remain in full force
and effect.
16.3.
Waiver. Any failure by SCL to exercise or enforce its right under the Agreement shall not be
a waiver of that right, nor prevent SCL from exercising or enforcing such right at a later time.
16.4.
No partnership or agency. Nothing in the Agreement is intended to, or shall be deemed to,
establish any partnership or joint venture between the parties, nor constitute either party the
agent of the other for any purpose. Neither party shall have authority to act as agent for, or to
bind, the other party in any way.
16.5.
Third parties. A person who is not a party to the Agreement shall not have any rights to
enforce its terms.
16.6.
Variation.
16.6.1. SCL shall be entitled to reasonably amend the Agreement at any time upon notice to
the Customer if there is any amendment to the agreement between SCL and the
network provider which directly or indirectly impacts upon the Agreement.
16.6.2. Except as set out in these Terms, no variation of the Agreement, including the
introduction of any additional terms and conditions, shall be effective unless it is
agreed in writing and signed by SCL.
16.7.
Governing law. The Agreement, and any dispute or claim arising out of or in connection with
it or its subject matter or formation (including non-contractual disputes or claims), shall be
governed by, and construed in accordance with English law.
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16.8.
Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have
exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the
Agreement or its subject matter or formation (including non-contractual disputes or claims).
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SERVICE LEVELS
SERVICE
Ethernet
EFM
SERVICE LEVEL
DO OVER-USAGE CHARGES
APPLY?
Support 24/7
4 hour fix time
No
Support Mon – Fri 8am to 6pm
7 hour fix time
No
Ethernet over Fibre to the
cabinet (EoFTTC)
Support Mon – Fri 8am to 6pm
Fibre to the cabinet (FTTC)
No Service Level available
Yes
Broadband (ADSL, MPF SMPF)
No Service Level available
Yes
No
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